Questions the Judge may ask in epilepsy or seizure case
Disability cases based on seizure disorders are a very special kind of disability case.
If your case goes in front of an Administrative Law Judge, you can expect to be asked these questions:
How often do you have seizures?
What happens during a seizure?
How do you feel after a seizure?
What do you have to do after a seizure (lie down, sleep etc)? And for how long?
Are you treating with a doctor?
Are you taking your medications as prescribed? How long have you been taking your medications?
While seizure disorders (epilepsy, partial complex seizures, etc.) are often disabling, simply having a seizure disorder is not enough to be found disabled. In many cases, …
Don’t go to your Social Security disability hearing with out-of-date medical records!
It surprises my clients to learn that, most of the time, Social Security does not update medical records after the initial denial.
With wait times of a year or more, this can mean that by the time your case gets in front of a judge, the records in your file may be a year (or more) old, and your recent treatment may not be in the file at all.
This is not the way the system is supposed to work.
How to postpone a Social Security hearing?
Even though it often takes a year or even two years to get your Social Security hearing, you may find that you are not ready when the big day finally comes.
Is there any way to continue, postpone, or delay my Social Security hearing?
Yes. You can request a continuance to postpone your hearing.
Lets look at how to do this.
How long after my case is assigned to a Judge does it take to get a hearing?
If you are keeping in touch with the Office of Disability Adjudication and Review (ODAR) which is preparing your case for hearing, you may be told that your case has finally been assigned to an Administrative Law Judge (ALJ).
However, ODAR may not tell you is how much longer it will take to get a hearing date, now that your case has been assigned to a Judge. So, how long after your case is assigned to a judge will it take to get a hearing?
Does your story hold up, or is it full of holes?
Part of what any good attorney does is listen carefully.
I am always on the look out for inconsistencies. Some problems are obvious, others may seem minor. But, they always run the risk of derailing a case.
The individual with epilepsy, or other seizure disorder, who still has a drivers’ license and regularly drives.
The PTSD or social anxiety disorder sufferer who still goes to their children’s school events, supermarkets or church service.
Social Security hearings are largely credibility assessments: can the judge believe what you say about your disabilities. If your testimony at hearing is inconsistent, why should the judge believe you are disabled?
I listen for these potential problem areas, because if I can spot a potential pitfall, we may be able to avoid it.
Making your Social Security claim stand out!
Gordon Gates writes about how he tries to make each case different and memorable when preparing to go to hearing.
I am always concerned that a particular claim will not get the attention it deserves at the hearing level, due to the tremendous workload at the Social Security hearing offices. Each administrative law judge decides several hundred claims every year.
…
I have an upcoming hearing with a client who has an unusual story. The medical evidence is very good, and the claim should be granted at hearing. Nevertheless, I am spending a great deal of time on the claimant’s story…, because it is so unusual. That story will be the hook that draws the judge into the case.
I agree completely!
In my office, I regularly meet with my clients and listen to their stories. Every once in a while I hear something that rings a bell. My eyebrows jump, and I make sure to write down that story in my notes.
Every individual applying for Social Security has had unique experiences related to their disability. It does not have to be anything big. I am not talking about a trip to the ICU.
Things to watch out for if your case is moved to a new hearing office
I previously wrote about how Social Security may move a case from one hearing office (Office of Disability Adjudication and Review – ODAR) to another to try to ease case congestion and speed up processing.
Usually, there is nothing to worry about when this happens. However, there is something you do need to watch out for. If you are not careful, you could delay the decision in your case, or even reduce your chances of winning.
Gordon Gates on “the 11 Percent ALJ”
Social Security attorney Gordon Gates wrote about a Social Security Administrative Law Judge (ALJ) who only approves 11 percent of cases.
In trying to find some insight in to how this ALJ could only approve 11% of cases when most other ALJs approve somewhere between 45-60% of cases, Gordon found the following post from the ALJ on a high profile public website:
Some doctors go overboard on diagnoses and treatment because they sense the “pot of gold” in having a fairly young patient on Medicare for many years to come with a reliable source of payment for constant treatment.
Lawyers and other non-attorney representative can receive fees as a percentage of the back benefits awarded to a claimant. Once a claimant has a legal representative, one can actually track how the alleged impairments become much worse, with new impairments and symptoms added as the case matures.
A judge with some experience can almost recite verbatim the same story we hear from virtually EVERY claimant, suggesting they have received training from the national organization of the claimants attorneys. The government is complicit in this boondoggle, because the Social Security Administration actually publishes lists of symptoms for various impairments in the form of rules for judges to follow. Is it any wonder we hear those lists of symptoms at almost every hearing?
The Judge’s quote is quite lengthy and covers a number of topics. I encourage you to read it in Gordon’s article: The 11 Percent ALJ.
While I can agree with the Judge on several points in the longer quote, I strongly disagree with what the Judge says above.
Let’s set ‘em up and knock ‘em down!
Long Social Security hearing delays? “Blame the judges!”
The long wait times in Social Security cases are prompting a backlash against Administrative Law Judges (ALJs) in Social Security cases.
Across the country, it takes an average of 480 days to get a judge’s ruling on a Social Security disability claim — but 650 days if your case is in Portland.
The problems in Portland reflect a broader national crisis, according to Social Security Administration records … Only about half the agency’s administrative law judges meet its minimum goal of clearing 500 cases a year.
….
In October 2007, Social Security Commissioner Michael J. Astrue met with a delegation of judges from around the country and … complained that many were not productive enough, according to the union that represents the judges. Astrue also accused them of not wanting to be subjected to any professional standards.
The commissioner has testified before Congress that the bulk of administrative law judges are hardworking. But he has griped about underachievers, and the agency set performance goals that ask judges to clear 500 to 700 cases a year..
Grab the pitch forks! Light the torches! It’s the judges’ fault!
Of course, things are not that simple.
Social Security Judge’s approval or denial numbers published by Oregonian
Would you like to know what percentage of cases the Administrative Law Judge (ALJ) assigned to your Social Security disability, or Supplemental Security Income (SSI) case, approves and denies?
In response to a Freedom of Information Act request by The Oregonian, the Social Security Administration released the production numbers and approval rates for all of its administrative law judges. The agency released complete reports for 2005, 2006 and 2007. The table for 2008 covers most — but not all — of the year.
Click below and enter the Judge’s name to see the statistics for that judge.
If you were in jail or prison and are applying for Social Security disability benefits, get your entry & release dates!
We have previously discussed that an individual is not eligible to receive Social Security disability benefits while incarcerated. This issue frequently comes up when an individual already on Social Security is incarcerated.
However, it is important to remember that the prohibition on receiving Social Security benefits may also impact your application for Social Security benefits, if you were in jail or prison during the time you are alleging entitlement to Social Security disability benefits.
For example:
Let’s say you applied two years ago and that you are waiting for a hearing.
But, one year ago (during the period of alleged disability), you were in jail for a month.
Social Security will not pay you benefits during that periods of incarceration.
Here is the problem that comes up:
My case was moved to another Social Security hearing office! What’s going on?
When you are waiting for your Social Security hearing, it can come as a shock to receive a letter telling you that your case has been transferred to a different hearing office in another state.
Attorney Donald Chewning writes about this on the Wisconsin Disability Blog.
If you are awaiting a hearing before an Administrative Law Judge in Wisconsin you may have noticed that the hearing has been scheduled before a judge in California. In my practice in northeastern Wisconsin, most of my cases would ordinarily be heard by judges from the Milwaukee Office of Disability Adjudication and Review (ODAR). However, since March 2008 the Social Security Administration has shifted responsibility for cases normally heard by Milwaukee judges at the Green Bay and Oskhosh hearing offices to other ODAR branches. For instance, cases heard at the Green Bay hearing office are being sent to the Oakland, CA ODAR.
For many people, having their case moved to another state causes a lot of stress and worry.
Why was my case moved?
What does it mean for my case?
How much of a delay is THIS going to cause?
Does Social Security think I can travel out of state for my hearing?
Often, there is a good reason for moving the case and it can actually help you!
If I have a lawyer, why am I doing all the talking?
The one thing people are most surprised about when they go to a hearing is that the lawyer does not do all of the talking. In fact, it is the claimant (aka “you”) who has to answer the Judge’s questions. I hear a lot of questions and comments about this.
I went to my hearing and my lawyer sat there like a bump on a log.
Why am I paying a lawyer, if I have to answer all of the questions?
What do you mean, I have to talk at the hearing; isn’t that what the lawyer is there for?
Why doesn’t a lawyer speak for you at the hearing?
Social Security hearings in jail or prison
The second part of Gordon Gates’ article on whether you can receive Social Security disability benefits while incarcerated, talks about hearings in prison.
The problem – incarcerated claimants often do not get treatment from physicians who are very interested in filling out forms or helping the prisonor/claimant. Further, judges tend to be somewhat skeptical about the credibility of an imprisoned claimant.
I have done hearings in prisons and I agree with his concerns.
It is much harder to prove a case for someone who is incarcerated.
Where do Social Security vocational experts get their information?
I was recently asked where Vocational Experts get their information from?
There a number of sources Vocational Experts use:
The Dictionary of Occupational Titles
Selected Characteristics of Occupations
Job surveys performed by the Vocational Expert
Services Vocational Experts sign up for which provide job titles, requirements and national and regional job numbers.
If you are working with a lawyer, he or she probably has at least some of these and can verify the skill level, exertional and non-exertional requirements of a jobs the Vocational Expert testified about.
